Ads for nappies, bath lifts and vacuum cleaners have recently been accused of breaking comparative ad rules. The catch was that all three advertisers denied they were comparative. Omar Bucchioni compares and asks when a comparison is not a comparison.
Who: ASA (Procter &Gamble; Npower and Vax Ltd)
When: October 2008
Law stated as at: 20 October 2008
What may advertisements related to a) baby products; b) energy claims and c) cleaning tool have in common? They all have been recently under investigation by the Advertising Standards Authority (“ASA”) because of their alleged comparative claims and in all three cases the advertiser argued that the ads were not comparative at all.
Procter & Gamble (Pampers) successfully challenged by Kimberly-Clark (Huggies)
A recent magazine ad for Pampers Secure-Me Fit nappies showed a woman cuddling a baby and stated: “You should always feel secure. […] Pampers Secure-Me Fit provide the most secure fit after your mum’s arms”.
Kimberly-Clark complained to the ASA that they did not believe the claim above could be substantiated as they believed their own brand of nappies (Huggies Newborn) performed just as well.
P&G argued that the phrase was not intended as a comparison to other nappies at all, but rather drew parallels between the secure feeling a baby had when held by their mother and the feeling of a nappy that fits snugly and securely.
However, the ASA considered that readers would also interpret the claim “most secure fit after your mum’s arms” as suggesting that pampers Secure-Me Fit nappies provided a more secure fit than competitors’ nappies for newborns and was therefore a comparative claim (see http://www.asa.org.uk/asa/adjudications/Public/TF_ADJ_45099.htm).
In any case, P&G stated that the claim could be substantiated, but the ASA rejected P&G’s evidence because it was not a consumer study that demonstrated actual performance as perceived by consumers rather than laboratory-based performance, which might not be meaningful to consumers.
The complaint was upheld.
Npower successfully challenged by EDF
A national press ad for nPower was headlined “Best buy energy deals. Choose the npower offer to suit you”. Bullet points underneath listed six different offers. (For more detailed information click here).
EDF Energy challenged whether the claim “Best buy energy deals” was misleading and could be substantiated, because they believed they offered several deals which were better value than those offered by Npower.
Npower’s first line of defence was that “Best buy energy deals” was not a comparative claim at all as it did not make any comparisons with other suppliers or their products.
In addition, they explained that they were inviting customers to choose an offer that suited them from the available Npower offers, without suggesting that those deals were better than any competitor’s deals. This was made clear, they said, by the text “choose the Npower offer to suit you”.
The ASA considered the text ambiguous and believed that consumers were likely to understand that claim to be a comparison with the products of other energy suppliers. As a result, the ASA could not find any basis for the claim as Npower did not provide any evidence that showed that Npower’s offers were better than their competitors’. The EDF complaint was therefore upheld.
Vax unsuccessfully challenged by Dyson
An ad for a Vax vacuum cleaner in catalogues published by Argos and Grattan had the headline “No loss of suction*”. The Argos catalogue had text underneath stating “No loss of suction – cleans as good as the first time, every time”. Footnoted text in both ads stated “In accordance with independent laboratory testing to IEC standard 60312. Machine must be maintained as instructed in the user guide”. See http://www.asa.org.uk/asa/adjudications/Public/TF_ADJ_45100.htm).
Dyson challenged whether the ads were misleading because they believed that in circumstances similar to domestic use, the cleaners did lose suction.
Dyson also made the interesting allegation that by referring to “loss of suction”, Vax was unfairly taking advantage of the reputation of Dyson products and, presumably by implication effectively comparing/aligning the Vax product with those of Dyson.
The basis of this imaginative claim was that “no loss of suction” was a claim made consistently by Dyson and therefore associated in the minds of the public with Dyson products.
Vax argued that neither complaint was well founded. On Dyson’s claim to some sort of monopoly right on “no loss of suction” claims in vacuum cleaner ads, Vax said there was no express or implied reference to Dyson in their ad and they were not aware that Dyson had registered “No loss of suction” as a trade mark. They said this was purely a descriptive reference to an attribute of the product.
The ASA was satisfied on the evidence submitted that the Vax product did not suffer loss of suction and rejected the complaint on that score.
On the “unfair advantage” claim, the ASA accepted Vax’s arguments and felt that claims to no loss of suction were commonly made by various vacuum cleaner advertisers and ought to remain free for general descriptive use provided they were not misleading.
Accordingly both complaints were rejected.
Why this matters:
Three adverts of different products that apparently were not meant to create any comparison with any other similar products found themselves under the vigilant scrutiny of the ASA’s adjudication panel for comparative advertising.
In two cases there was held to be a comparative claim and advertisers should be vigilant in checking copy to ensure that comparative claims are recognised as such and that the relevant rules in the CAP Code and the Business Protection from Misleading Marketing Regulations 2008 are complied with.
In the Vax/Dyson case some might regard Dyson’s attempt to arrogate to itself all rights in “no loss of suction” claims in vacuum cleaner ads as to say the least ambitious. We suspect they were not surprised at the outcome on that point.